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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDMVH & Mauldin Police Department vs. John Novelli

AGENCY:
South Carolina Department of Motor Vehicles & Mauldin Police Department

PARTIES:
Appellant:
John Novelli

Respondents:
South Carolina Department of
Motor Vehicles &
Mauldin Police Department

 
DOCKET NUMBER:
07-ALJ-21-0292-AP

APPEARANCES:
n/a
 

ORDERS:

STATEMENT OF THE CASE

On March 16, Officer GJ Ryan was on routine patrol in Mauldin, South Carolina, when he observed a pickup truck being operated in a manner that got his attention and prompted surveillance.  Officer Ryan initiated a traffic stop and identified Appellant as the driver.  Appellant was arrested for driving under the influence and transported to the Mauldin Police Department for a breath test.

Officer B. Grice, a trained and certified DataMaster operator, offered Appellant an opportunity to consent to a DataMaster test.  Officer Grice advised him that he was being videotaped and of his implied consent rights.  Appellant refused the test, and Officer Grice issued a Notice of Suspension

After the DMV received the notice of Suspension, the DMV suspended  Appellant's drivers license in accordance with state law.  Appellant then requested an administrative hearing.

The hearing was held on May 1, 2007 before Hearing Officer Tracy G. Holland. Officer Ryan and Officer Grice appeared and testified.  Appellant appeared with counsel Jeffrey A. Merriam, but did not testify.  Hearing Officer Holland issued a decision on May 29, 2007 sustaining the DMV’s implied consent suspension. Appellant filed this appeal on June 19, 2007. After reviewing the Record and applicable case law, I find that the decision of the hearing officer must be affirmed.

 

 

ISSUE ON APPEAL

 

1.                  Did the hearing officer err in finding that the Appellant was advised in writing of the rights enumerated in S.C. Code 56-5-2950?[1]

 

DISCUSSION

Appellant argues that the hearing officer’s decision must be overturned because he was not advised in writing of the rights enumerated in S.C. Code 56-5-2950.  The Implied Consent Statute, S.C. Code Ann. § 56-5-2950(a) (2006), provides that a person who drives a motor vehicle in South Carolina is considered to have given consent to chemical tests of his breath, blood, or urine to determine whether the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.  The statute provides, in pertinent part:

No tests may be administered or samples obtained unless the person has been informed in writing that:

(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;

(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one hundredths of one percent or more;

(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;

(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and

(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

S.C. Code Ann. § 56-5-2950(a).  (Emphasis supplied). 

Under Subsection 56-5-2950(e), the failure to follow policies or procedures set forth in § 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” 

S.C. Code Ann. § 56-5-2951(a), governs the Department of Motor Vehicle’s (DMV) suspension of a driver’s license for refusing to submit to a test or for certain levels of alcohol concentration.  The statute states that the DMV “shall suspend the driver’s license . . . of . . . a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950.” The statute also gives an offender thirty days in which to request an administrative hearing.  S.C. Code Ann. § 56-5-2951 (B)(2). 

The hearing officer must determine whether the person:

(1) was lawfully arrested or detained;

(2) was advised in writing of the rights enumerated in Section 56-5-2950;

(3) refused to submit to a test pursuant to Section 56-5-2950; or

(4) consented to taking a test pursuant to Section 56-5-2950 (and several conditions relating to administration of the test).

S.C. Code Ann. § 56-5-2951(F) (1-4) (emphasis added)

The Supreme Court of South Carolina recently held in Taylor v. SC Dep’t of Motor Vehicles Op. No. 26637 (S.C. Ct. App. filed April 20, 2009) (Davis Adv. Sh. No. 17 at 19) that the “in writing requirement” is just one of the factors in determining that a driver was advised of his rights. As the Court states:

We find nothing in section 56-5-2951 which mandates re-issuance of the driver’s license if one or all of the above factors is not met.  If the Legislature had intended the lack of written notice (or any other factor) to be a fatal defect, it could have said so in the statute.  Id. See also; Giannini v. SC Dep’t of Transportation, 378 S.C. 573, 664 S.E.2d 450 (2008) (if Legislature had intended certain result in a statute it would have said so).  Accord S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E2d 544, 549 (Ct. App. 2005) (requirements for suspension for refusal to consent do not include written notice of implied consent statute).

 

The court further held that “the criterion in § 56-5-2951(f) are simply factors which the DMV may consider in determining whether to uphold a suspension, i.e., a prejudice analysis” and that “examination of the four factors with an eye toward prejudice is the proper inquiry.” Id.

I find that the hearing officer did not err in upholding the suspension.  The DataMaster operator testified that he advised Appellant of his rights when he “gave him a copy of the driving under the influence advisements; read him Section (B) as he read along with me, explaining all the procedures and penalties for refusal of a breath test.”

Therefore, Appellant knew of his rights and suffered no prejudice.  Therefore, the decision of the hearing officer is affirmed.   

 

ORDER

It is hereby ordered that the DMVH’s Final Order and Decision is AFFIRMED.

            AND IT IS SO ORDERED.

 

                                                                        ______________________________

                                                                        CAROLYN C. MATTHEWS

                                                                        Administrative Law Judge

 



[1] The second issue is whether the hearing officer erred in finding that the persons charged with driving under the influence were required to submit to chemical tests pursuant to S.C. Code 56-5-2950. Appellant argues that a person arrested for Driving Under the Influence is not required to submit to testing unless there is compliance with S.C. Code 56-5-2530. This argument is rendered moot by the ruling on the “implied consent” issue and will not be discussed by the Court.

 


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